F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 20 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
JAMES JOSEPH OWENS-EL,
Petitioner-Appellant, No. 03-6020
v. (D.C. No. CIV-02-1674-F)
(W.D. Oklahoma)
WARDEN SURGURE, FEDERAL
TRANSFER CENTER,
Respondent-Appellee.
ORDER AND JUDGMENT
Before EBEL , HENRY , and HARTZ , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2). The case is therefore submitted
without oral argument. This order and judgment is not binding precedent, except
under the doctrines of law of the case, res judicata, and collateral estoppel. The
court generally disfavors the citation of orders and judgments; nevertheless, an
order and judgment may be cited under the terms and conditions of 10th Cir. R.
36.3.
Mr. James Joseph Owens-El, a federal prisoner appearing pro se, appeals
the district court’s dismissal of his application for writ of habeas corpus under 28
U.S.C. § 2241. Mr. Owens-El filed a § 2241 application in the United States
District Court for the Western District of Oklahoma, challenging a sentence
imposed by the United States District Court for the Central District of California.
The matter was referred to a magistrate judge, who recommended dismissal for
lack of jurisdiction. The district court adopted the magistrate judge’s report and
dismissed the application.
In his report the magistrate judge cited Bradshaw v. Story, 86 F.3d 164, 166
(10th Cir. 1996), for the proposition that a Ҥ 2241 [application] attacks the
execution of a sentence rather than its validity and must be filed in [the] district
in which [the] prisoner is confined.” Report and Recommendation at 2. Since
Mr. Owens-El was confined at the United States Penitentiary in Florence,
Colorado, when he filed his application, the magistrate judge reasoned, he should
have filed in Colorado, not Oklahoma. The magistrate judge further ruled that
even if Mr. Owens-El’s application could be construed as an attack on his
conviction under 28 U.S.C. § 2255, the Oklahoma filing would still be improper
because, according to Bradshaw, 86 F.3d at 166, such an application would have
to have been filed in the Central District of California, where the sentence was
imposed. Thus, the magistrate judge concluded, the Western District of
-2-
Oklahoma did not have the authority to review Mr. Owens-El’s application,
whether it arises under § 2241 or § 2255.
On appeal Mr. Owens-El challenges the district court’s dismissal on two
grounds. First, he says that he in fact filed an application with the Oklahoma
District Court during his stay at a federal transfer center in Oklahoma City. He
says that the filing was not recorded because a clerk intentionally and fraudulently
concealed his application. Second, he appears to argue that notwithstanding the
place-of-filing rules, the Oklahoma District Court was required to accept his
application because (1) the District of Columbia Circuit Court of Appeals directed
him to file an application in the district of his confinement after denying him
relief in an earlier proceeding, (2) he attempted to file in accordance with that
direction, and (3) the Western District of Oklahoma must follow the direction of
superior courts like the District of Columbia Circuit.
We review de novo a district court’s dismissal of an application for a writ
of habeas corpus under § 2241. See Bradshaw, 86 F.3d at 166. We affirm.
As for Mr. Owens-El’s first argument—that an Oklahoma court clerk
fraudulently concealed his application—we have carefully reviewed Mr. Owens-
El’s almost incomprehensible pleadings in district court, and we have not found
any reference to misconduct by a court clerk. Because Mr. Owen-El’s argument
was not raised below, we will not address it here. See King v. United States, 301
-3-
F.3d 1270, 1274 (10th Cir. 2002) (As a general rule, “this court will not consider
an issue on appeal that was not raised below.”).
Mr. Owens-El’s second argument—that the district court was required to
hear his case because the District of Columbia Circuit essentially ordered it to do
so—is without merit. The order that Mr. Owens-El references in support of this
argument does not direct any action; it merely states: “The avenue for the relief
sought here is [an application] for writ of habeas corpus before a court in the
jurisdiction in which [the applicant] is confined.” In re James Joseph Owens, No.
02-5221 (D.C. Cir. Sept. 20, 2002) (order denying petition for writ of mandamus).
In the district court Mr. Owens-El filed an unsuccessful application to
proceed without prepayment of fees. Mr. Owens-El has renewed that request on
appeal. Because Mr. Owens-El has failed to show “a reasoned, nonfrivolous
argument on the law and facts in support of the issues raised on appeal,”
DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991), we deny the
request.
For substantially the same reasons set forth in the magistrate judge’s Report
and Recommendation, adopted by the district court in its Order of December 23,
2002, we AFFIRM. Mr. Owens-El’s application for a certificate of appealability
-4-
is denied because such a certificate is unnecessary to appeal the denial of a
§ 2241 petition.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
-5-